musical compositions with or without words; cinematographic works
to which are assimilated works expressed by a process analogous to
cinematography; works of drawing, painting, architecture, sculpture,
engraving and lithography; photographic works to which are
assimilated works expressed by a process analogous to photography;
works of applied art; illustrations, maps, plans, sketches and three-
dimensional works relative to geography, topography, architecture or
science.The list is, however, not limitless. The “production”must still be in the “literary,
scientific and artistic domain”. This is one reason why, as the following U.S.
case exemplifies, sports games are not protected by copyright, although a
broadcast or record of them may be protected under a regime of neighbouring
rights.National Basketball Association v. Motorola Inc., 105 F. 3d 841 (U.S.: Court
of Appeals, 2nd Cir., 1997)[The National Basketball Association (“NBA”) sued Motorola and STATS for
making available, both on a handheld pager called “SportsTrax” and on an AOL
website, information about NBA professional basketball games as they were
being played. The appeal court agreed with the first instance court that there
was no copyright in the games themselves.]JUDGE WINTER for the Court:In 1976, ... Congress passed legislation expressly affording copyright protection to
simultaneously-recorded broadcasts of live performances such as sports events. ... Such
protection was not extended to the underlying events. ...In our view, the underlying basketball games do not fall within the subject matter of federal
copyright protection because they do not constitute “original works of authorship” under [the
Copyright Act of 1976] § 102(a). Section 102(a) lists eight categories of “works of authorship”
covered by the act, including such categories as “literary works,” “musical works,” and “dramatic
works.”^4 The list does not include athletic events, and, although the list is concededly non-
exclusive, such events are neither similar nor analogous to any of the listed categories.Sports events are not “authored” in any common sense of the word. There is, of course, at least
at the professional level, considerable preparation for a game. However, the preparation is as
much an expression of hope or faith as a determination of what will actually happen. Unlike
movies, plays, television programs, or operas, athletic events are competitive and have no
underlying script. Preparation may even cause mistakes to succeed, like the broken play in
football that gains yardage because the opposition could not expect it. Athletic events may also
result in wholly unanticipated occurrences, the most notable recent event being in a
championship baseball game in which interference with a fly ball caused an umpire to signal
erroneously a home run.What “authorship” there is in a sports event, moreover, must be open to copying by competitors
if fans are to be attracted. If the inventor of the T-formation in football had been able to copyright
it, the sport might have come to an end instead of prospering. Even where athletic preparation
most resembles authorship – figure skating, gymnastics, and, some would uncharitably say,(^68) professional wrestling – a performer who conceives and executes a particularly graceful and
I. COPYRIGHT: CASES AND MATERIALS
4 The text of Section 102(a) reads:
§102. Subject matter of copyright:
In general
(a) Copyright protection subsists,
in accordance with this rule, in
original works of authorship fixed in
any tangible medium of expression,
now known or later developed,
from which they can be perceived,
reproduced, or otherwise
communicated, either directly or
with the aid of a machine or device.
Works of authorship include the
following catgegories:
(1) literary work;
(2)musical works, including any
accompanying words;
(c)dramatic works, including any
accompanying music;
(4)pantomimes and choreographic
works;
(5)pictoral, graphic, and sculptural
works;
(6)motion pictures, and other
audiovisual works;
(7) sound recordings; and
(8) architectural works.